Who was the lower cost avoider? Given this, what would have been the efficient outcome?
Battery-- THREATS not protected, as long as there is no contact.
ELEMENTS:
(1) X acts,
(2) Intending to cause
a) harmful contact (w/P), OR
b) offensive contact, AND
(3) X’s acts cause such contact
Intent Requirement:
o Purpose of causing offensive or harmful contact, OR
o Acting with substantial certainty that conduct will result in harmful contact.
o Have to be almost sure (not just 75 % or something)
o Purpose/substantial certainty of the offense  don’t have to show that they had in mind the full extent of
harm, just that acting with purpose of harming person
o Keep in mind:
(1) intent CAN be transferred (intend to harm someone but harm someone else,)
(2) Motive is irrelevant (doesn’t matter if believe are committing harmful contact to help person,)
(3) Have to act volitionally WITH intent (not just volitionally.)
Damages available: BOTH
Assault
ELEMENTS:
(1) D Acts,
(2) Intending to cause:
a) an imminent harmful contact, OR
b) an imminent offensive contact, AND
(3) D’s act must cause P to reasonably [defined objectively] apprehend an imminent harmful or offensive
contact with P.
Damages available: BOTH
Defenses to Battery & Assault
Consent (justification)
o Express OR Implied
o Have to actually and reasonably believe that have consent
o Don’t have to be correct, just have to have reasonable basis (O’Brien v. Cunard)
o Can’t benefit from consent if it resulted from fraud/coercion
o Courts will sometimes hold void as a matter of public policy
Self-Defense (justification)
o Actual and reasonable belief that need to injure another to avoid injury to self (OBJECTIVE standard)
o NOT only of defamation or distress
o (Haeussler)
o Must be provocation—WORDS usually NOT enough, but can contribute to overall belief.
o Must be imminent—unless it reasonably appears there will be no later opportunity to prevent the danger.
o Can only use proportional force. (Haeussler)
o Don’t have to retreat from home BUT still must use only proportional force
Defense of Property (justification)
o Land and chattel
o Defense and Repossession are different
o Privilege exists on essentially same basis as right to defend oneself--provocation, imminent, proportional
o Property Rule protection (Injunction) v. Liability Rule protection (Damages)
o Choose between based upon transaction costs
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Who was the lower cost avoider? Given this, what would have been the efficient outcome?
Intentional Infliction of Emotional Distress (IIED)
ELEMENTS:
(1) Extreme and outrageous conduct, AND
(2) D must act intentionally or recklessly to cause the severe emotional distress, AND
o Reckless—D must be aware and consciously disregard a substantial risk
i. Risk—gross deviation from SOC
ii. Doesn’t have to be aimed at specific person
o Intentional—intent is NOT transferable  has to harm the person aimed at
(3) Must cause such distress
o Don’t need professional evidence BUT do have to prove (Littlefield)
Damages available:
o Compensatory (NO punitive damagescompensatory already kinda are)
NOTICE: for assault all have to prove is apprehension BUT here you have to show severe emotional distress
Trespass
Intentional invasion of another’s land w/o that owner’s consent
o No knowledge requirement  liable even if you thought it was your land
o “invasion”—something w/in your control (you, water, animal) has to go on the land
o Only owner or possessor can bring action
o P cant have consented
DEFENSES?
(1) Did D have incomplete privilege to use P’s land? (PRIVATE NECESSITY) (Vincent v. Lake Erie Transport Co.)
o P can’t evict,
o and can be held liable for damage caused in course of doing so
o BUT D must pay for damage
(2) Did P CONSENT to allow D to use her land?
o What was the nature of that consent?
o What was the scope of that consent
Why do we have strict liability for Trespass but not for Nuisance?
o Different in character  trespass is physical encroachment, nuisance just interfering w/enjoyment
o More clear in trespass that trespasser is lower cost avoider than in nuisance context.
Respondeat Superior
A public or private employer is liable for its employees’ actions that fall within the scope of their employment
(Wall-Mart Stores, Inc.)
Strict Liability
Proves entire claim EXCEPT for ultra-hazardous activities, then just proves breach
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Who was the lower cost avoider? Given this, what would have been the efficient outcome?
NEGLIGENCE Misfeasance (easy—history of recognizing duty) v. nonfeasance (hard—not well-established)
(1)
(2)
(3)
(4)
(5)
Duty
Breach (of requisite standard of care)
Causation—(a) causation in fact; AND (b) proximate cause
Injury—physical or financial
Defenses
Does P have standing to sue?
o
o
o
Is P alleging injury to her/himself?
Is P the next of kin or estate of a decedent upon whose behalf they’re suing? If so, then go onto establish
the rest of the elements as they apply TO THE DECEDENT!
Is P alleging D’s employee injured him? Respondeat Superior
DUTY CHECKLIST: (yes or no and what gives rise)
(1) Premises liability? Duties that apply to possessors
(BUT Roland v. Christiansonshouldn’t make these distinctions)
o Is this person an invitee?
o Is this person a licensee?
o One of the exceptions to trespass (children/regular (various) OR known(specific))
(2) Was there a general duty?
o MacPhereson v. Buick Motor Company—Inherently/imminent danger caused when negligently made
+ knowledge of use by 3rd party.
o Heaven v. Pender-- when you manufacture the product for use of another person and any ordinary
person would know there would be a risk of injury. When it’s reasonably foreseeable that careless
conduct will risk harm to persons such as the plaintiff.
o Foreseeability (Mussivand—lover, husband was foreseeable)
o Professional negligence cases: does the negligent conduct have to do w/performance of professional
duties?
(3) Is there something that gives rise to heightened duty?
o Common carrier (Jones v. Port Authority—bus pulls off)
o Strict liability (Pingarodog bite)
(4) Was there a duty to rescue? (NONFEASANCE  hard cases, not as much history)
o Was there a special relationship?
 Psychiatrist
 Victim must be identifiable
 How specific the threat/danger must be is unclear
 Social Host???
 McGuiggan—NO b/c parents didn’t know was drunk and drunk driver was
superseding cause BUT McGuiggan leaves open possibility that host could be liable if
knew or should have known guest was drunk and still served.
 Commercial Vendors-- court more likely to impose duty here
o Was it a joint venture? (D contributed to creating risk)
(5) Is this a case where NEID creates a duty?
o Mortician mishandling body?
o Zone of Danger?
(1) Within zone of physical danger? OBJECTIVELY—not enough that P thinks so
(2) Physical manifestation of distress caused
(3) Fear of being injured is the cause of emotional distress
o Bystander? (Dillon & Thing)
(1) At scene of injury (physical proximity)
(2) Aware of what was happening (temporal proximity)
(3) Close relation to person injured (relational proximity)
(6) Is there a policy reason to exempt from duty?
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Who was the lower cost avoider? Given this, what would have been the efficient outcome?
BREACH CHECKLIST: (what was the standard of care owed and was it breached?)
Reasonable Person
Standard—Would a reasonable person of ordinary prudence, in D’s position, have conducted themselves as D did?
(1) Premises liability? (Salaman)
o Invitee—reasonable care
o Duty to inspect for hidden dangers
o Warn of known dangers
o Licensee—duty to warn of known dangers (no duty to warn of unknown dangers)
o Children OR regular/known—reasonable care (same as invitee)
o Res Ipsa invokable?
o Negligence Per Se invokable? Is there a statute barring D’s conduct?
(2) Was there breach of a general duty?
o reasonable care
o What does custom tell us? (probative but not determinative)
 EXCEPT is determinative in medical malpractice
 Medical malpractice: Did D fulfill the Prudent Patient/Professional Standards?
 What would POSNER say (are the parties linked in an ongoing relationship or strangers?)
o Res Ipsa invokable? (see below)
o Negligence Per Se invokable? Is there a statute barring D’s conduct?
(3) What heightened SOC is called for and was it breached?
o Heightened care (Jones)
 What does custom tell us?
o Strict liability (Pingaro)
o Res Ipsa invokable? (see below)
o Negligence Per Se invokable? Is there a statute barring D’s conduct?
(4) Was there a breach of duty to rescue?
(5) Did D breach the SOC under NEID?
o Reasonable person standard
o Res Ipsa invokable? (see below)
o Negligence Per Se invokable? Is there a statute barring D’s conduct?
(6) Was D involved in UNTRAHAZARDOUS Activity?
(7) Are any of the EXCEPTIONS to the reasonable person standard present?
o Blind, deaf, etc.  Reasonable Blind/Deaf person standard
o Tender Years
 Not capable of being negligent, OR
 Can be negligent BUT reasonable person standard won’t apply
 BUT: Is child engaging in adult activities? (doctrine won’t apply)
o Insanity
(8) What does a cost-benefit analysis tell us about breach here? B
PL Who’s the lower cost avoider?
Conditions for Imposing Res Ipsa
(1) Injury must be of a type that doesn’t occur w/o negligence (Injury has to more probably than not result
from negligence
o Strong limiting condition
(2) D must be in exclusive control of the harm-causing instrumentality
o D must be the one you can clearly point to as being responsible
o May or may not be able to invoke against multiple Ds
(3) P must not have been responsible for or an active participant in the injury
o Another way of stating 2---if P is active participant, D could not have been in exclusive control.
Criteria considered for Negligence Per Se
(1) Was the statute intended to protect people like P
(2) Was the accident/injury that occurred is the kind the provision was intended to protect against.
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Who was the lower cost avoider? Given this, what would have been the efficient outcome?
CAUSATION CHECKLIST:
(1) Was D an Actual Cause of P’s injury?
o Would P’s injuries have occurred “but for” D’s actions?
o D must actually be proven a cause, not just one possibility among others (Skinner)
o Did D’s actions increase the risk of harm to P? (Beswick—private ambulance) YES—up to jury to decide
whether risk was a substantial factor in producing the harm.
o Is there scientific evidence? Does it satisfy Daubert?
o Are there multiple causes?
o Are there multiple necessary causes?
o YES—just have to be “a” cause (and you’re a “but for” cause, just not “the” but for
cause, but you’ll be held liable as an actual cause.)
o Are there multiple sufficient causes?
o Substantial factor test (Goodyear,
o Are there two D’s equally likely to have caused, but only one could have?
o P can hold both as actual causes under an alternative causation theory BUT both D’s are
entitled to present evidence showing it wasn’t them.
o Reluctance to extend this to situations were there are more than two possible alternate causes.
(2) Granted that D was a cause in fact, should D be held liable? Is D a Proximate Cause?
(a) Under the Directness Test? (NO LONGER FAVORED)
o How close in TIME are breach and injury?
o How SPATIALLY close are breach and injury?
o Were there INTERVENING acts or events?
(b) Under the Foreseeability Test? (FAVORED by courts)
o Was P’s injury one that could be reasonably foreseen? YESPC / NOnot PC
(c) Under the Risk Rule? (FAVORED by 3rd Restatment)
o Was injury the realization of one of the risks that made D’s action wrongful?
o Consider BPL equation—is this one of the things that made burden less than PL?
o Not just was it foreseeable, but was injury created by a risk D took?
(d) Under a Grab-bag approach?
(3) Is there an intervening/superseding cause that could negate D’s liability?
o If D realized someone would take advantage of their negligent conduct  still liable (Britton v. Wooten)
o When D’s product used for destruction (terrorism/fertilizer)…are there other uses for the product?
INJURY CHECKLIST: Physical? Financial? Emotional under NIED?
DEFENSES CHECKLIST:
(1) Was P acting negligently also? (Same reasonable person standard)
o Comparative fault? REDUCES RECOVERY (may bar it too)
o was P more or less than 50% negligent?
o Baldwin—YES = get nothing
o Contributory negligence BARS RECOVERY (but not so common to see this now)
(2) Is there a way to argue P assumed risk? ABSOLUTE BAR on RECOVERY
o Explicit??? (If so, is this void for policy reasons?)
o Implicit
o Actually knew of (particular) risk
o Voluntarily consented to bear that risk
 NOT necessarily fulfilled b/c deliberately encounter danger (j-walker)
 Protest, but then go anyway?
o 3rd Restatement  this is obsolete
o NO implicit assumption where there’s duress (were P had no reasonable choice)
(3) Is there a way to argue that D has some sort of immunity?
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Who was the lower cost avoider? Given this, what would have been the efficient outcome?
DAMAGES CHECKLIST:
(1) Is D entitled to punitive damages? (National By-Products—common law test)
o NOTE: Don’t need malice on D’s part BUT Negligence not sufficient—need more than simple carelessness
o Was D unaware his conduct was dangerous? Wanton disregard (ower threshold)—D need not know BUT
o Conduct must pose grave dange;r AND
o D had reasons to know of dangers of conduct
o Was D aware her conduct was dangerous? Conscious indifference—
o D is aware his conduct creates a risk of injury; AND
o That risk is substantially larger then necessary than the risk required to make the conduct careless.
o Guideposts:
o degree of reprehensibility of D’s conduct
o disparity b/t actual and potential harm suffered
o difference b/t punitive damage awards by jury and civil penalties available for same wrongdoing.
o See long outline pg. 29 for guidelines for reviewing these awards
(2) Has P already gotten any money? Collateral Source Rule  Reduce total award by that amount, then go to (3)
(3) Did D’s employee cause the damage (and not D directly?)—Respondeat Superior—(scope of employment
test)—Can risk fairly be regarded as typical (or broadly incidental) to enterprises undertaken by employer?
(4) Are there multiple D responsible?
YES
o Indivisible injury
o If the parties were working concurrently or in concert (both were needed for injury to occur) 
joint and several liability
o POLICY NOTE: If you argue J&S is possible, you should note that many states are backing
away from this and suggest that it might be possible to see fault as divisible and award
proportional damages—though we may not know which parts of the injury were caused by
whom, we may be able to tell who was more negligentdivide accordingly
o Divisible injury—apportion damages accordingly
NO—whoever’s responsible must pay
(5) Was P comparatively at fault?
o YES—reduce P’s damages proportionately
o Say if was contributory negligence D wouldn’t have to pay
o Say if were divided damages situation, damages would be split among
o Is P more than 50% at fault? In some states this would bar recovery
o NO—D must pay it all
(6) Was this a maritime collision or stranding?
o Also say Divided damages possible  damages divided evenly (not common now)
o BUT this is uncommon—argue to go with previous analysis
(7) Is this a wrongful death or survival action?
o Wrongful Death—(brought by next of kin)
o VICARIOUS claim—kin allowed to bring action b/c of what happened to victim
 Can recover
 Lost wages
 Loss of companionship
 Loss of guidance
 Can NOT recover
 Grief or anguish experienced
o Survival Action—(brought by estate)
o Claim is for harm decedent suffered up UNTIL death, NOT for loss of life
 Medical Costs
 Apprehension of imminent death
o NOTICE: here, law has traditionally discriminated against losses of easily identifiable groups: children,
unmarried young persons, the poor, the elderly.Loss of guidance/companionship may help with this.
o McClung, Dead Sorrow—we should allow people to collect for loss of life
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